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Community Affairs References Committee
19/09/2016
Indefinite detention of people with cognitive and psychiatric impairment in Australia

MARTIN, The Hon. Chief Justice Wayne Stewart, AC, Private capacity

Committee met at 08:33

CHAIR ( Senator Siewert ): Welcome. I declare open this public hearing and welcome everybody here today. We acknowledge the traditional owners of the land on which we meet and pay our respects to elders past, present and future. This is the third public hearing of the committee's inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia. I thank everybody who has made a submission to this inquiry. This is a public hearing and a Hansard transcript of the proceedings is being made. The audio of the public hearing is also being broadcast via the 'interwebs'.

Before the committee starts taking evidence I remind all present here today that in giving evidence to the committee witnesses are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence being given to the committee. Such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence. The committee prefers all evidence to be given in public, but under the Senate resolutions witnesses have the right to request to be heard in private session. It is important that witnesses giving evidence today, if they intend to ask to give evidence in private, let the secretariat know before they do that.

I welcome the Chief Justice of Western Australia. Could you please confirm that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you?

Chief Justice Martin : Yes, it has; thank you.

CHAIR: We have your submission. Thank you. I would like to invite you to make an opening statement, and then we will ask you some questions.

Chief Justice Martin : Thank you, Senator, and thank you to members of the committee for giving me this opportunity to speak this morning. When people who suffer from cognitive or psychiatric impairment are suspected of committing criminal offences, difficult issues of public policy and practice are posed for the justice system, for the government and for the community. It seems to me that the considerations of public policy relevant to the resolution of those issues do not all point in the same direction.

My opening remarks will be mostly addressed to the situation in which it has been determined that the cognitive or psychiatric impairment suffered precludes effective and fair participation in the procedures adopted in our justice system for the determination of guilt or innocence. In those cases it is important to bear steadfastly in mind that under our system of justice a person who has not been found guilty of an offence is presumed to be innocent. It follows that in such cases it is quite wrong to punish such people as if they had been found to be guilty.

The same considerations apply to people who are found fit to stand trial but who are acquitted of guilt on the ground of unsoundness of mind at the time of the commission of the offence. In those cases, and in the many more cases in which people are found unfit to stand trial as a result of a condition which they suffered at the time of commission of the alleged offence, it is also important to bear in mind that our justice system has long reflected a community ethos to the effect that people who suffer from a mental condition that prevents them from understanding the nature or consequences of their actions should not be held morally culpable or accountable for those actions and should be addressed therapeutically rather than punitively.

On the other hand, government, including the justice system, has a primary responsibility to protect the community. People who are suspected of committing offences but who suffer from cognitive or psychiatric impairment must be managed not only in accordance with the policy considerations I have already mentioned but also in such a way as to reduce to acceptable levels the risk those people might pose to our community. It seems to me that the appropriate balance of those countervailing considerations leads to a focus upon risk assessment and risk management using mechanisms that are primarily therapeutic rather than punitive. I would not expect that proposition to be contentious, but what is sometimes contentious is the manner in which those general principles are put into practice and effect.

In Western Australia the mechanisms for balancing those considerations are to be found in the Criminal Law (Mentally Impaired Accused) Act 1996, which I will refer to as the CL(MIA) Act. As members of the committee are sure to be aware, the government of this state released a report on the review of that act earlier this year. That review follows an earlier comprehensive review of that act conducted in 2003, which recommended quite substantial changes, but those changes were not enacted. I understand that it is most unlikely that the most recent review will result in any legislative change before the next state election, which is due in March of next year. It seems to me, respectfully, that the delay in responding to the many acknowledged deficiencies in the CL(MIA) Act is regrettable. My views in relation to those deficiencies in the act and what ought to be done to correct them correspond with those that were expressed in a written submission provided to the review on behalf of the Supreme, the District and the Children's courts of Western Australia. I sent that to the committee last week and I believe you have it. I am happy to table that and for you to take my views as embodied in that submission.

The appropriate treatment and management of the limited number of individuals who are detained under the CL(MIA) Act is a very significant matter in itself, but it is worth also emphasising that the significance of the way in which we deal with those people extends not only to those who come within the purview of the act but also to the many who plead guilty rather than come within the scope of the act.

As was noted by the Hon. Peter Blaxell, a former colleague of mine, and Professor Colleen Hayward AM when they conducted a review of the Bennett Brook Disability Justice Centre: because we are failing to provide an appropriate regime for mentally impaired accused persons, there are very significant implications for criminal practice in this state, in particular individuals who plead guilty despite their impairment or their disability because they do not want to take the risk of being detained in custody indefinitely, possibly for a period longer than they would serve if convicted of an offence on a plea of guilty. As a consequence of that, the legal profession of this state is understandably reluctant to bring clients within the scope of the act. I am sure that there are cases in which proper legal advice is to a client to plead guilty rather than raise the question of the act and take the risk of indefinite detention. That might provide part of the reason that many studies have shown that people with mental and cognitive disabilities are significantly overrepresented in the criminal justice system. Tragically, Aboriginal people are just as overrepresented within that group as they are in the prison system generally.

I understand the committee is also interested in the Bennett Brook Disability Justice Centre, which opened during 2015 and which is the first declared place established under the CL(MIA) Act. A lot of work went into the preparation of that act—a lot of planning went into it—and it is very comprehensive legislation that was well thought through. The design of the facility is very good; it is sensitively designed and was originally designed to have an entirely appropriate therapeutic focus. But, with the greatest respect for those responsible for its management, its actual operation has fallen well short of the expectations, which I and others held at the time that it was opened. I must emphasise, though, that I am not involved in the day-to-day operation of that centre and I have not been involved since it opened and so what I know of that centre is basically drawn from what is on the public record. I am happy to talk about it, if you wish. That is all I wish to say, Senator, and I am happy to take questions.

CHAIR: Thank you.

Senator REYNOLDS: Thank you very much for your comprehensive submission. It was not happy reading, but it was very illuminating, and so thank you for that. I would like to start off with two of the issues you have just raised. First of all, let us explore further the high expectations that are not being met at Bennett Brook. What are some of those issues? How can they be addressed?

Chief Justice Martin : Going back to the basic principles, I think it is all about risk management. The question is: how should a person be managed, given that they are presumed to be innocent? It seems to me that the first step is: what risk to they pose to the community? If they pose a significant risk, then the community has to be protected from them, and they need to be kept in a secure facility. Until Bennett Brook the only secure facilities we had were the Frankland Centre, which is a place for mentally ill people and those people who need treatment—it is a secure hospital—or prisons. There was nowhere in between. With Bennett Brook—looking back with the benefit of hindsight and it is easy to be wise after the event—I think there was a degree of ambiguity about the nature of the people who would be placed within the centre. I do not think that was appropriately conveyed to the community.

The site chosen was on the perimeter of a residential area. It backs onto bushland, but it is just over the road from a large residential community, which has schools and lots of people living there. Given that choice of site, I think it was important to emphasise the expectation that it was to be a prerelease centre. It was to be a halfway house for those people who had been detained often the very lengthy periods in prison because they did pose a significant risk to the community, but who were determined not to pose a risk but who had been institutionalised and whose return to the community needed to be managed appropriately. It was important to emphasise to the community that these were people who otherwise would have been released and who were destined for release anyway. So it was a prerelease centre to manage therapeutically people who had been assessed to be sufficiently low risk that they could be placed in such a centre. I do not think that message was conveyed. When a couple of people walked out of the centre—which is only to be expected when you think about the sort of people we are dealing with—there was an expectable community reaction because that message had not got across effectively and then they responded by saying, 'We going to build a massive fence around centre at great expense and we are going to clear the small number of people who are in there.' As soon as you start talking about building fences, again you are sending mixed messages to the community. You are saying, 'These are people who do pose a danger.' Again, with the benefit of hindsight, you need to be clear: are we talking about people who pose a risk or are we not? If you are talking about people who pose a risk, you need one type of facility. If you are talking about people who do not pose a risk but who are being managed therapeutically on their way back into the environment, then you need another type of facility. Again, looking at it as a complete outsider and not having been involved in the management, I think the problem is that there was ambiguity about what the nature of the centre was and who was going to be in it.

Senator REYNOLDS: So, just following on from that, the heart of the issue is lack of sufficient community consultation before the centre opened and then managing that once it had opened?

Chief Justice Martin : The alternative to this facility, as I understand it, would have been that people would have been taken to the door of the prison and told: 'Bye-bye. Off you go. Here's your belongings in a bag. See you later.' This facility was designed to bridge that gap between that rather stark alternative and manage their release back into the community. I do not think that message was conveyed as strongly as it should have been, and I think by building fences, as they have now done, that really detracts from that message quite significantly.

Senator REYNOLDS: So that is actually reinforcing the misperception?

Chief Justice Martin : It is reinforcing the misperception that there are dangerous people in there who you need to be protected from by building the fence, and, if there are dangerous people in there, I am not sure that that would have been the right sign. I think there was that ambiguity in its choice and operation.

CHAIR: Could I just perhaps follow up that question then. As I understand from what you have just said, in terms of people who have a cognitive impairment or a psychiatric impairment who have not been found guilty of an offence, the Bennett Brook Disability Justice Centre was never designed for that particular group?

Chief Justice Martin : No, it was, but, as I understand it—most of the people who have been through there, and there have not been that many, which is another disappointing feature of it—it was not designed for the long-term containment of people who were found unfit to stand trial. It was designed as a prerelease centre for shorter term—

CHAIR: So people who had been in—for example, Mr Noble—

Chief Justice Martin : People who had been in prison for a long time.

Senator PRATT: So not uncriminally sentenced as opposed to under the CL(MIA) Act?

Chief Justice Martin : I think it can accommodate both because both are in detention and under the control of the Mentally Impaired Accused Review Board. But I think it was mainly CL(MIA), and I think the number of CL(MIA) people is much higher than the number of people found guilty but acquitted because of unsoundness of mind because generally the only time that plea is taken is in a homicide case because in any other case the sentence you are likely to get is going to be less than the time you are likely to spend in custody. So it is mainly homicides, and they are quite rare; we get maybe one or two a year. Professor Morgan would know more the numbers, but my guess is that there would be more people in under the CL(MIA) Act than detained on having been found guilty but of unsoundness of mind.

I think the centre does accommodate both but, as I understand it, it was designed as a prerelease centre rather than as a centre for the long-term containment of those people. Those people who were heading for release anyway had been assessed to be of sufficiently low risk to be released, so the idea was to manage their return into the community so that, for example, they could go out during the day. One of the advantages of having it close to a community is they can go out and work during the day and come back at night—that sort of thing—so you are gradually reintegrating them into the community. But, if that is the type of facility you are running, then you need to emphasise to the people amongst whom they will be moving that these are people who are destined for release and who would have otherwise been released anyway. I do not know if that message was conveyed. It certainly was not to the people who were standing behind the placards when I went out there for the opening.

Senator DUNIAM: Yes, the wonderful people! Just on the fence—you say the fence, when it was erected, probably sent mixed or wrong messages about the purposes of the facility. Is the fence for this type of facility not necessary in your view?

Chief Justice Martin : As I said, I think you have to make a clear choice. I think there would be a case for providing a secure therapeutic facility or management facility that is not a prison for long-term management of these people but, as I understand it, that is not what this facility was intended to be. So either you say, 'Okay, we're going to provide an alternative to prison for people in this condition which does not have the harshest of prison regimes,' or you say, 'Prison is the place where we'll keep these people for the longer term, but we'll manage their return into the community through this prerelease centre.'

As I understand it, it was that kind of facility that was intended. You do not need a fence around that kind of facility, because you have assessed people to be of low risk. If you put a fence around it, it is sending the wrong message, because gradual integration through things like day release, going out to work, going out to do their own shopping—that sort of thing—is a desirable part of reintegrating into the community. You would not do that if you were talking about people who posed a danger. It is either one or the other; but I think there are mixed messages there.

Senator REYNOLDS: What do you attribute the low numbers to, so far?

Chief Justice Martin : Caution—concern about the risk. The estimates vary about the number of people. At one stage I thought they were talking about two centres to accommodate up to 20. Now they have one centre that accommodates up to 10. I do not think it has ever had more than two in it. I think that reflects a very cautious approach to putting people into the facility, I suppose because of concern that if somebody did pose a problem to the nearby community it would set the exercise right back. But, again, Professor Morgan might know more about that than I do.

Senator DUNIAM: Caution from whom?

Chief Justice Martin : Caution about something going wrong. A very conservative approach to risk is probably the explanation.

CHAIR: Senator Dodson, do you have some questions?

Senator DODSON: I was just going to ask His Honour about the options you have in the sentencing process. I noticed in the submission that there seem to be just two options: you either unconditionally release people or you sentence them indefinitely to custody. Is there sufficient consideration being given to this limitation on your sentencing?

Chief Justice Martin : A long time ago, when the act was first passed, it was suggested that we should have more options. Again, in 2003, in the most recent review, it was said—I think appropriately—that we should have all the options under the Sentencing Act when somebody has been found unfit to stand trial, which includes supervision on condition. I think that is absolutely important because, having dealt with these cases myself, you have a very stark alternative. It is either indefinite detention, which can be for a very long time, or complete, unconditional release; and very often you would want a middle road. For example, a case I had in the Kimberley—Senator, obviously you would be familiar with the conditions up there—involved a man who was clearly cognitively impaired, probably as a result of, I suspect, FASD, followed by substance abuse—sniffing for a long time. There was an allegation of inappropriate behaviour of a lower order with children. He was a management risk. It was very low order seriousness offending. He was a management risk. He could be managed in his community, if there were conditions imposed about where he would live and not going near the school and those sorts of things. But I could not impose those conditions, so I had to either take a punt to lock him up indefinitely, which I was not prepared to do because his behaviour just was not that serious, or take a punt and hope that the community itself would impose those conditions on him. The evidence I got was that the community were aware of his needs. There were a couple of relatives who were going to step up and look after him, and so I took the punt. But we should not have to take a punt in cases like that. We should have had the option of saying, 'I'm not going to put you into custody, but here are the conditions you have to live by, and if you breach those conditions then some action could be taken.'

Senator DODSON: Can I ask you also about the indefinite incarceration. Are there any mechanisms to review that—

Chief Justice Martin : The only mechanism at the moment is the Mentally Impaired Accused Review Board, which decides when a person will be released or if they will be, for example, shifted into the Bennett Brook Disability Justice Centre. There is no mechanism for review. There is no cap on detention. Members of the committee will be aware that there have been a number of cases in which it has been observed that the person has spent much longer in custody than they would have if they had been convicted of the offence, and that is why, as I mentioned earlier, legal practitioners in this state take a pragmatic view to the operation of this act. If they have a client who is likely to end up spending more time inside if they go under the act than if they plead guilty, they will plead them guilty. There have been a number of cases of that, and there is nothing the court can do about that.

CHAIR: Can I just jump in there. In Queensland, if that happens and people plead guilty, we did not hear quite the same reasons but we heard similar sorts of reasons for them doing that. If they offend again and then talk about their cognitive impairment or they get a new lawyer and they bring that up, the judge goes back and looks at the fact that they have pleaded before and did not raise the issue and, therefore, is less inclined to believe them. Is that—

Chief Justice Martin : I do not think that would be an issue here. When the issue is raised, it really goes off to the province of experts. So we would get a psychiatric report or reports. If there is a contest, you would get more than one report. Very often these cases are agreed, because you get a psychiatric report and there is often not a lot of doubt. If the psychiatric report is clear, the prosecution will accept it and we go on that basis. But, as you may have seen in our submission, we suggest a number of things. First of all, we should be able to put a cap on the period of time that a person has spent, being a rough approximation of the sentence that you would have served if you had been convicted. We also want the capacity for a court to review that person up to the time of the cap. We have dangerous sexual offender legislation in this state whereby the court reviews every year the risk that that person poses to the community. We want a provision in the act saying that you could only put somebody in custody if the risk which they pose to the community justified that course. Those sorts of things, we think, would build in adequate protections so that there is a full, transparent judicial review of risk, and that goes back to my fundamental proposition: this is really about risk management rather than punishment.

Senator DODSON: Regarding the kind of treatment that is delivered, I suppose, or accessible to a person in those conditions, is there an assessment made of it or whether that is actually applied or the qualitative value of it or anything?

Chief Justice Martin : At the minute, except for the very small number of people in the Bennett Brook Disability Justice Centre, they are in prison. If there is a custody order made, they are in prison. The prison system in Western Australia does its best, but it is the largest provider of institutional mental health care in the state by a mile. Estimates vary, but the sensible estimate is that about 50 per cent of the prison population suffers from cognitive disability or mental impairment. So the mental health people have a huge job in front of them. Their capacity for dedicated treatment of the kind that some of these offenders need—I say 'treatment'. You have got to distinguish, I think, between those who are mentally ill in a treatable way, and ordinarily those people would be detained in a hospital. But we are talking now about people who have a neurological deficit or cognitive disability that needs management, and I use the word 'treatment' in that broader sense. In other words, it is management in the sense of managing it in a way that reduces the risk. The capacity to do that in a prison system that is groaning at the seams because of the sheer number of people within it is very limited. So capacity for community management on conditions that they receive treatment within the community would be beneficial because there is much more chance of a person being managed appropriately within the community than in the prison system. That is why, if we had those options under the sentencing act, I think that would be a giant step forward. The latest review of the act by the government has recommended that we be given those options, but as I say, that is not the first time that has been recommended, and 20 years after the act we still do not have it.

Senator PRATT: Do you think the failure to reform the CL(MIA) Act is a political thing in terms of a concern that the community will perceive that they are exposed to greater risk in some way?

Chief Justice Martin : It is dangerous for a judge to speculate about what motivates politicians! I would rather not go into that.

CHAIR: Fair enough! Do you want to rephrase, Senator Pratt?

Senator PRATT: I guess I am interested in the idea that, if there is a perception, then, if you like, people end up pleading guilty, being sentenced and serving their time, and that in fact perhaps the inverse is true. There is a greater risk to the community of a failure to reform the CL(MIA) Act because people serve their time and then they are out.

Chief Justice Martin : I think that is certainly right. If, as I suggest, the focus ought to be on risk management, then the problem is that, because of this diversion away from that system, risk is not being managed. There is just a short-term prison sentence or a fine that will never get paid and, no, the problem is not addressed. Whereas a properly designed system would identify people who need management and manage them in a way that would address risk and, hopefully, manage them in a way that is least invasive in the sense that it involves the least interference with their right to live a normal life within the community so that again, as we say throughout the system, custody ought to be an absolute last result. The problem is where you do not have any middle ground—it is either unconditional release or custody—you get to custody much quicker than you would if there were some opportunities in the middle.

Senator PRATT: In terms of Western Australia's international human rights law obligations, what would you say about how the current situation reflects on those?

Chief Justice Martin : This is one of the many areas in which I think that law and practice in Western Australia do not conform to international standards, but that does not seem to be of any great moment to those who make these decisions. I have not conducted a detailed analysis, but I have found in the past that reference to international standards does not seem to cut a lot of ice.

Senator PRATT: But, clearly, in terms of prosecuting this issue further, the management of risk and the failure to manage risk under the current system would be the most compelling argument.

Chief Justice Martin : Yes. Again if you look at it either from a humane point of view—from the humane and sensitive treatment of people who suffer these conditions, often through no fault of their own—or from a protection of the community point of view, they both lead to the same conclusion. And happily that is where the policy consideration can point in the same direction. If you focus on management of risk then you have a more humane system but you also have a system that better protects the community. Unless you are going to lock up everybody who suffers from these conditions indefinitely, which is inhumane, counterproductive and expensive—if you accept that people are going to be released eventually, as we generally do in our system, then the question is: how can we manage them in a way that when they are released they pose a minimal risk to the community?

Senator REYNOLDS: Could you tell us a bit more about this risk management in terms of who? Presumably there is a culture of risk aversion, which is seen in a number of departments. What is that chain of risk assessment, risk management and inability to make a decision?

Chief Justice Martin : It starts with the courts where under the CL(MIA) Act we have to make a decision about custody or unconditional release, so that is the first level of risk management. If the person poses a risk then, as I said, at the moment if we think that risk is too great to allow unconditional release then the only option we have is a custody order and once a custody order is made it then shifts to the Mentally Impaired Accused Review Board.

Senator REYNOLDS: If you had a viable third option, that would then—

Chief Justice Martin : We would then have a full suite of options available under the sentencing act so we could impose a community supervision order, which would have conditions—we could impose a treatment condition, so that somebody would then be required to attend treatment. I talk about 'treatment', as I said, not in the sense of health treatment but in the sense of risk management so that somebody can be managed, counselled and supervised—for example, we can impose conditions about where they live, about regular urine analysis if substance abuse has an impact and those sorts of things—so that they can then be managed effectively within the community.

If a custody order has to be made because those options are not appropriate then under the current system their management passes to the Mentally Impaired Accused Review Board and they determine basically what happens to those people—whether they are given governor's release, whether they go to Bennett Brook or when they are released generally.

Senator DUNIAM: Are there any other jurisdictions, either here or overseas, we should be looking to that do things better than WA?

Chief Justice Martin : One of the models we looked at for the purpose of our submission was Victoria. We thought Victoria had a significantly better system than we did. It pains me to say that, but—

Senator REYNOLDS: It pains us as Western Australians to hear it.

Chief Justice Martin : I think the system in Victoria had some advantages as we saw it.

Senator DODSON: I have a very broad question, your Honour. I heard what you said in relation to human rights compliance or conformity. I am wondering whether there is a sufficient understanding of the duty of care by the state in relation to the officers or people who have responsibility for the care and treatment of those who are accused as well as to those who are accused. So there are two aspects there. What is the duty of care to these people? Does simply having passed a sentence, one way or another, dispense the duty of care?

Chief Justice Martin : Once somebody is taken into custody then those responsible for their custody have a duty to keep them safe but they do not have a duty to change their lives or to manage them. Similarly, those who employ the people who are in the facilities looking after these people have a duty to keep them safe, but that is pretty much where the law stops. So it is all about safety from injury; it is not about a duty to manage their—

Senator DODSON: Rehabilitation?

Chief Justice Martin : There is neither duty to manage their reintegration into the community nor any general duty to keep the community safe that has been recognised by the courts in the context of that duty-of-care situation.

Senator DODSON: Thanks.

CHAIR: Thank you so much. Unfortunately, we have run out of time. I suspect we could keep talking to you all day. We have your submission, so, unless that is a new one, we do need not to table that.

Chief Justice Martin : Thank you very much for your attention. Good morning.